Issue in Focus

Jan202017

Barack Obama’s presidency was unprecedented in many ways, but the most distinctive – and damaging – feature of his tenure in the White House was his casual disregard for the constitutional limits on the office of the president. By the end of two terms in office, Former-President Obama had grown perfectly comfortable boasting about violating the boundaries on the Executive Branch in order to enact policies that had been rejected by Congress.

From education (forcing Common Core on states through No Child Left Behind waivers), to immigration (granting de facto amnesty to illegal immigrants through DACA and DAPA), our 44th president took unilateral lawmaking to never seen before heights.

But as damaging as all of these executive actions were, the real scandal is the vast lawmaking powers that the Executive Branch wields today by law. For decades Congress has largely avoided the difficult and politically inconvenient trade-offs inherent in legislating, choosing instead to delegate sweeping regulatory powers to federal bureaucratic agencies.

As a result, unelected bureaucrats—not elected representatives in Congress—end up making the vast majority of the federal laws Americans must obey on a day-to-day basis. In 2016, for instance, Congress passed and the president signed 2,966 pages of new laws, while federal agencies issued 97,110 pages of new regulations—about 32 times as much.

As a new president is sworn in today, many Democrats are coming to regret their acquiescence to the centralization of policymaking authority in the Executive Branch, particularly when it comes to trade policy, an area where the president has been granted immense discretion to unilaterally raise trade barriers.

For example, Section 122 of the Trade Act of 1974 authorizes the president to deal with “large and serious United States balance-of-payments” deficits by imposing temporary import surcharges on any goods, not exceeding 15 percent.

While Section 122 confines the president’s authority to act within 150 days, Section 338(a) of the Tariff Act of 1930 contains no such time restriction. Under Sec. 338(a),the president “when he finds that the public interest will be served shall by proclamation specify and declare new or additional duties... upon articles wholly or in part or product of...any foreign country whenever he shall find as fact such country… discriminates in fact against the commerce of the United States.”

These are just two examples of the vast discretionary authority to raise trade barriers that the Executive Branch will have at its disposal. While some Americans may wish to see higher trade barriers in the United States, there’s reason to believe that such a move would wreak havoc on many small and midsize manufacturers that rely on imports and globally connected supply chains.

That is why Congress must reassert its Art. I Sec. 8 power “to regulate commerce with foreign nations” by passing the Global Trade Accountability Act.

This bill would create a new Sec. 155 in the Trade Act of 1974 that would require congressional approval for any “unilateral trade action” undertaken by the Executive Branch. Before raising any trade barriers, the president would be required to submit a report to Congress outlining the proposed unilateral action, the costs and benefits of the action, and the effective period of the action.

Both chambers of Congress would then have to pass a joint resolution approving the proposed action before it could go into force. The law does allow for a “national emergency” exception, but even that declaration would apply for only 90 days. After that, the aforementioned joint resolution would be required for the policy to continue.There are still many other areas of federal law in desperate need of congressional accountability. The Regulations from the Executive in Need of Scrutiny (REINS) Act, would set up a similar process for all new federal regulations that impose $100 million or more in compliance costs on the U.S. economy. But this is one step Congress can take now to start making the Executive Branch accountable again.